President Donald Trump and Housing and Urban Development (HUD) Secretary Ben Carson have finally ended the Obama-Biden era regulation Affirmatively Furthering Fair Housing from 2015 that conditioned receipt of $3 billion of annual community development block grants on rezoning neighborhoods along racial and income guidelines.
Now, under the new rule, called Preserving Community and Neighborhood Choice, finalized on July 23, local control of zoning has been restored. It states, “It must be local governments, not HUD, that exercise control of administering local housing policies, including zoning and development policies that are unique to a particular community.”
This is a victory for federalism and confirms local governments’ greatest responsibility to run its own communities — the way it should be. It also frees up municipalities from needless red tape when it comes to deciding where to build new affordable housing developments.
“After reviewing thousands of comments on the proposed changes to the Affirmatively Furthering Fair Housing (AFFH) regulation, we found it to be unworkable and ultimately a waste of time for localities to comply with, too often resulting in funds being steered away from communities that need them most,” said Secretary Carson in a statement outlining the changes.
Carson added, “Instead, the Trump Administration has established programs like Opportunity Zones that are driving billions of dollars of capital into underserved communities where affordable housing exists, but opportunity does not. Programs like this shift the burden away from communities so they are not forced to comply with complicated regulations that require hundreds of pages of reporting and instead allow communities to focus more of their time working with Opportunity Zone partners to revitalize their communities so upward mobility, improved housing, and home ownership is within reach for more people. Washington has no business dictating what is best to meet your local community’s unique needs.”
The 2015 Obama-Biden rule required adjusting local zoning in order to received federal funds: “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”
The old rule also required identifying disparities in ‘“access to public transportation, quality schools and jobs . . . [and] environmental health hazards” and “programs, policies, or funding mechanisms that affect disparities”.
But as the new Preserving Community and Neighborhood Choice regulation explains, this made the grant process all but impossible for municipalities to comply with: “The process for grantees was also overly burdensome and costly. The number of questions, the open-ended nature of many questions, and the lack of prioritization between questions made the planning process both inflexible and difficult to complete. Unsurprisingly, the rule required significant resources from grantees and its complexity and demands resulted in a high failure rate for jurisdictions to gain approval for their [Assessment of Fair Housing] in the first year of AFH submission. Grantees complained that it was extremely resource-intensive and complicated, placing a strain on limited budgets.”
Americans for Limited Government President Rick Manning in a statement praised the Trump-Carson action and blasted the Obama-Biden predecessor, saying, “the Obama administration Affirmatively Furthering Fair Housing regulation created an unfair presumption of discrimination based on zoning without any proof beyond Census maps. This was an absurd expansion of federal power and put the most important local government decisions in the hands of those with no stake in the outcome.”
The impact was to burden municipalities with regulation whose requirements were constantly shifting, since depending on changing economic circumstances, recessions or shifts in housing prices, the federal government could come back on an annual basis to demand further rezoning as a condition for receiving funds.
Which is why as soon as the Obama-Biden administration implemented the rule, Congress acted, first with the House of Representatives that adopted an amendment by U.S. Rep. Paul Gosar (R-Ariz.) to defund implementation of the entire regulation.
Later, an amendment by Sen. Susan Collins (R-Maine) passed the Senate easily 87 to 9 in 2016 that barred the regulation from being used to affect local zoning.
The Collins amendment was ultimately included in the 2017 omnibus, the 2018 omnibus, the 2019 omnibus, and the Consolidated Appropriations Act of 2020, stating: “None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws as part of carrying out the final rule entitled ‘Affirmatively Furthering Fair Housing’ … or the notice entitled ‘Affirmatively Furthering Fair Housing Assessment Tool’…”
Now, with the Trump-Carson action, the battle is won, but longer term, the war to abolish the suburbs will not end — especially if former Vice President Joe Biden gets elected. If he wins, he’ll bring the regulation right back. From Biden’s campaign website, “Biden will implement the Obama-Biden Administration’s Affirmatively Furthering Fair Housing Rule requiring communities receiving certain federal funding to proactively examine housing patterns and identify and address policies that have a discriminatory effect.”
For this reason, Congress should leave the Collins amendment defund in place indefinitely.
Here, Biden is saying that local zoning is discriminatory in itself. He ignores that zoning does not tell people where to live. People can just move if they don’t like their neighborhood, such that you could rezone along income or racial guidelines, and find out five or ten years later that people shifted around and found new jobs in different towns, and so they moved. It’s overreach to believe that housing choices, especially the choice of where to live, can be dictated from on high in this manner.
Besides, under federal law, individual cases of housing discrimination have been prosecuted since the Fair Housing Act was adopted in 1968. None of that will change under the new rule.
The question the American people have to ask this year is if they want local responsibility to govern their own communities — or if they want want to abolish local government in favor of faceless bureaucrats in Washington, D.C. to run your local town or city council’s most important decisions. Here, Trump and Carson are saying that the American people and their local representatives will make better choices regarding housing and zoning than the federal government ever will or could.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
